Capture of ‘The Beatles’: A New Framework for the Prosecution of Terrorists?

The UK is suggesting prosecuting its two most recently captured foreign fighters at the International Criminal Court in The Hague. The practice could provide a precedent for Western states trying to deal with thousands of Islamic State fighters.

With the capture of the last members of the infamous British Islamic State terrorist cell, the focus is again on the question of what to do with these terrorists once they are caught. Though these people have committed terrible crimes, it is important that they should be held accountable for their actions while upholding the rule of law.

Last week, UK officials confirmed that Alexanda Kotey and El Shafee Elsheikh, the last two remaining fighters of the British terrorist gang – dubbed ‘The Beatles’ for their easily recognizable accents – were arrested by Syrian Kurdish fighters. With this, all four members of the notorious gang known for their use of torture and executions of prisoners in the Islamic State capital of Raqqa, have been either killed or captured.

Who are ‘The Beatles’?

‘The Beatles’ consists of four British foreign fighters radicalized in London before joining the ranks of the Islamic State in Syria long before the Caliphate was established in the summer of 2014. The gang rose to fame soon afterwards, due to their exceptional brutality in executing Western hostages, including American journalists James Foley and Steven Sotloff.

The head of the group, Mohammed Emwazi, dubbed as Jihadi John by former hostages, appeared in several of the videos posted by the Islamic State of the beheadings. After the release of the videos, the Kuwait-born Briton was soon identified by UK officials with the help of released captives. After an intensive manhunt, he was killed in a drone strike in 2015.

The second member of ‘The Beatles’ Aine Davis was captured in the same year, as he slipped through the border to Turkey to attend a meeting in Istanbul. A petty criminal and drug dealer jailed for possessing firearms in the UK, Davis converted to Islam and radicalized on the streets of London. He met Emwazi in a London mosque and in 2012 left to fight in Syria. Upon his capture, he denied any kind of involvement with the group and the Islamic State in general, but was identified by former captives and was found guilty of being a senior member of a terrorist group. He was convicted and jailed in Turkey for seven and a half years in 2017.

Alexanda Kotey and El Shafee Elsheikh, the latter also a former member of Al Qaeda, both radicalized in London and met Emwazi in one of the radical mosques of the British capital. Both men are linked to the group’s executions and “exceptionally cruel torture methods” including electric shocks, waterboarding and mock executions. They were said to have been detained in mid-January after members of the US-backed Syrian Democratic Forces (SDF) captured them and suspected they were foreign fighters. Their identities are reported to have been confirmed by the US using biometric fingerprint testing.

Prosecution at The Hague

The possibility of prosecuting the captured terrorists at the International Criminal Court (ICC) in The Hague was brought up by Tobias Ellwood, junior defense minister of the UK last week. Ellwood called for an agreed international process involving The Hague, that would ensure terrorists from any origin are transparently and fairly held to account for their actions, pointing to the lack of consensus among Western governments on how to deal with returning foreign fighters. Currently, most European countries and the United States are reluctant to allow their citizens return to face prosecution in their home countries. Some, such as France, prefer French foreign fighters being prosecuted in countries they are captured in, where they might not have access to appropriate legal protections.

The two men are held by the SDF until a country requests for them to be handed over. According to the BBC, they can be sent to the US military prison in Guantanamo, or alternatively, could be tried at a criminal court in the US. The latter option was called for by families of US victims beheaded by the gang, however, Congress has been deeply opposed to terror suspects being held on US soil. Finally, as they are British citizens – though it has been reported that they have been stripped off their citizenships – they can also face trial in the UK. This is the solution the US has been advocating for, calling for the fighters to be returned home as soon as possible, as the SDF is overburdened with captured militants.

The British precedent

However, the British proposition to send the two men to The Hague seems like a better choice. The ICC is responsible for trying individuals for genocide, war crimes, crimes against humanity and aggression. It is currently investigating and holding trials in the cases of the 2011 Libyan civil war, the 2007/2008 post-election violence in Kenya, the 2008 Russian invasion of Georgia and numerous armed conflicts in various African countries.

Being tried in The Hague would mean those accused would be granted a fair trial and an independent prosecution, where their rights are upheld, including rights to an independent counsel and interpretation into their language in accordance with international law, namely the Geneva Conventions. As Ellwood pointed out, other options such as transfering terror suspects to the US’ Guantanamo facility would not ensure the upholding of international law, as “[it] created a new combatant status that bypassed the Geneva convention, used torture and failed to address a wider global jihadist insurgency that continues today.” His remark came a few days after US President Donald Trump’s executive order to keep the highly controversial facility open. Trump also raised the prospect of sending more prisoners there, including fighters from the Islamic State.

Prosecuting terrorists in the countries where they were captured is another option that raises a number of questions. Neither Iraq nor Syria are equipped with the right safeguards to ensure legal protections, a fair trial and an appropriate and proportionate sentence in accordance with the Geneva Conventions. A good example is the case of a recently convicted German woman, who was sentenced to death by hanging by Iraqi authorities for joining the Islamic State, while another, 16-year old German teenager is awaiting a similar sentence.

The Hague would also bridge differences that exist between national legislations. It would create a transparent and equal procedure for all terrorists regardless of their origins and bring a neutral verdict with the participation of the international community. The ICC would also be able to complement national courts in the case of foreign fighters who have been stripped off their citizenships.

However, the scale of the problem and the authority of the ICC could raise some problems. According to estimates, at the peak of the emigration to the Islamic State, the number of foreign fighters was as high as 42,000, originating from around a hundred different countries. Taking European foreign fighters, while nearly half have already left the Caliphate or died, a significant number remain in territories still controlled by the Islamic State. It is questionable whether the ICC has the capacity to deal with this many cases.

Additionally, if all countries that have foreign fighters do agree to the authority of the ICC in prosecuting these terrorists, a procedure will be needed to determine which cases will be handled by The Hague and which will remain in national courts. It would be worth sending “high-level” terrorists to The Hague, while taking care of lower level cases at home. Despite the fact that the ICC’s prosecution seems slow – they still have decades-long cases open – the fact that most foreign fighters are being captured with unprecedented efficiency is a good sign. An adequate process for the selection of terrorists for prosecution at The Hague and for the handover to the ICC could speed up the process.

Finally, the problem of recognizing the ICC’s authority remains a problem. Countries like the US, Russia or China have numerous foreign fighters in the Islamic State, but neither recognize the ICC. Therefore it would be questionable whether they would agree to have their citizens prosecuted there.

If solutions could be found to the above mentioned challenges, prosecuting foreign fighters in The Hague according to international law would send a strong message. It would mean that the UK and all affected countries are able to recognize the transnational nature of the foreign fighter phenomenon and terrorism more broadly, and thus the importance of establishing international legal norms as a response. Prosecuting foreign fighters in The Hague would be a sign of respecting the rule of law in the face of the brutal war crimes and outrageous crimes against humanity committed by the Islamic State.